The development trend of maritime law and its enlightenment to the revision of maritime law in China

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Maritime law came into being and improved with the rise and development of maritime trade. Adapting to the level of economic development and the situation of maritime trade in various historical periods, the development of maritime law has experienced a growing process from scratch, from weak to scattered, from simple traditional maritime trade to complex modern transportation modes dominated by multimodal transport and container transportation. As a continuous process form, maritime law must have a general trend and basic principles in its development. This paper hopes to summarize this trend and related principles by reviewing the development history of maritime law, with a view to enlightening the revision of maritime law in China.

First, the development history of maritime law

The long history of maritime law can be traced back to the provisions of the code of hammurabi on ship collision, ship leasing, ship mortgage and cargo damage compensation in the 8th century BC. Because it is mainly applicable to the inland waters of the two river basins, some domestic scholars believe that it can not be a real maritime law. However, the development of law is not a leap-forward process, but also includes the initial scattered and narrow embryonic form from scratch, so the author of this paper tends to classify it into the history of maritime law development. It is recognized by the legal circles that the first maritime customary law in ancient times was the Lex Rhodia, which appeared in BC to regulate the maritime commercial activities along the Mediterranean coast. Although we can't find the original text, we can find traces of general average and marine insurance clauses in the works of Roman jurists. In the 8th century BC, "basilica Code" developed such contents as maritime lending and partnership, and further expanded the adjustment scope of maritime law.

The enlightenment period of maritime law was completely in the stage of simple understanding of maritime trade. At this time, the maritime legislation is mainly manifested in the establishment, collection and compilation of merchant customary laws and trade habits in areas with frequent merchant activities. In the Middle Ages, with the development of economy, several central ports appeared in the Mediterranean, Atlantic and North Sea, and many city-states set up special courts or courts to solve maritime shipping disputes. During this period, the customary year became the so-called three major maritime laws: Lex Oleron, LexConsolato and Wisby rules. The three major maritime laws were all compiled by private individuals, which had legal effect in a certain region, in line with the development of European economy at that time, that is, the legislative system centered on cities; At the same time, because it is privately compiled, its effectiveness is extremely limited.

When history entered modern times, the independence of European countries and the influence of nationalism made it a trend to legislate in the name of countries, and on this basis, a comprehensive code was formed. Under the influence of centralized system, the legislative activities in this period showed the contradiction between the internationalization of maritime trade and the domestication of maritime legislation, and the serious differences in form and content of maritime laws in various countries restricted the healthy development of the international shipping industry. However, it is undeniable that the maritime legislation formulated by developed countries based on their respective interests and requirements still has a process of mutual reference and integration, which has had a far-reaching impact on later maritime legislation and laid a solid foundation for countries to coordinate and formulate conventions or laws to unify international maritime transport.

From 65438 to 0897, the International Maritime Committee was established in Antwerp, Belgium, marking the beginning of the era of modern maritime law. The purpose of the organization is to "unify the law of the sea in all fields through various appropriate channels and actions. To this end, it promoted the establishment of the National Association for the Law of the Sea and cooperated with other international organizations." During the same period, the United Nations established the Intergovernmental Maritime Consultative Organization (later renamed the International Maritime Organization) in London, and UNCTAD also actively participated in the unification movement of the law of the sea. Under the impetus of these three international organizations, a large number of international conventions have been formulated. The adjustment object of maritime law has expanded from the original maritime transport as the core to include the legal status of the ship itself and related systems, maritime freight and passenger transport, average accidents and limitation of liability for compensation, prevention of seawater oil pollution and environmental protection. The scope of its adjustment has also greatly broken through the boundaries of countries, and the maritime law conflicts between countries can be solved by concluding general international law.

Second, the development trend of maritime law

From the above analysis of the development history of maritime law, we can draw the following conclusions:

First of all, the adjustment object and scope of maritime law are constantly expanding. As the rudiment of maritime law, code of hammurabi stipulates the contents of ship leasing and risk lending. Article 237 of the Code stipulates: "If someone hires a boatman to transport grain, wool, vegetable oil, dates or any other goods, and the boatman accidentally sinks the ship or destroys the things on board, the boatman shall compensate him for the damaged ship and everything he destroyed on board." Because there was little use of ship transportation at that time, there was no conscious legislative purpose to develop the shipping industry, which was mostly confined to inland river transportation, and the "carrier" faced less risks. Therefore, there are two differences between the provisions in the code and modern legislation: 1, and there is no limitation of liability; 2. Adopting the principle that whoever damages the ship is in charge, the boatman only exists as the employer of the shipowner, and there is no separation of the independent status of the crew similar to that in modern maritime law.

The provisions in the ancient Greek "Rode Law" have increased, which reflects the particularity of maritime transportation activities. For example, "those who give up the goods to reduce the load of the goods should share the losses suffered by all beneficiaries because of the preservation of interests." In addition, there are provisions on marine insurance. It can be seen that when shipping goes out of inland rivers and into the ocean, reducing the risks faced by "carriers" has become the intention established by maritime law.

The maritime law of the Middle Ages was in the stage from private law legislation to national legislation, and from regional law to domestic law. At this stage, there were many compilations of customary laws, which were widely recognized and used by businessmen, thus establishing the status of customary law as the source of maritime law and forming the repetitive behavior of abstract rules. The rules of * * * are observed by individuals in use, forming a customary form of expression under general conditions, which becomes law under the action of national will. Due to the expansion of economic and trade activities, the three major maritime laws have involved ships, captains, crew members, salvage rules and maritime rules, and their sources include maritime precedents, customs and theories, forming a detailed and complete maritime legal system. Compared with previous historical periods, the adjustment objects of maritime law embodied in the three major maritime laws are not limited to making relevant provisions according to the flow of maritime cargo transportation, but also extended to the fields related to cargo transportation, such as the legal nature and status of ships and crew as the basis of maritime transportation, and the provisions on the relationship between "carriers" and shippers who deliver goods. , so that the adjustment object of maritime law is combined with laws in other fields, thus leveling the legal framework and enriching the legal connotation of maritime business. This change has promoted many issues related to maritime legal relations to be regulated under the framework of maritime law, and it also shows that the process of trade is a coherent process, and unified legal principles and norms are needed to avoid conceptual conflicts and incomplete norms caused by simple division of the process. For example, the carrier's liability principle is to divide the goods after they are delivered to its management and after crossing the ship's rail (this will be elaborated in detail below).

Modern maritime law, as an integral part of national laws, seems to have blocked its internationalization trend. When talking about this stage, many domestic scholars often focus on criticizing the disharmony between maritime legislation and the development of international shipping industry. However, I believe that it was during this period that maritime law completed the establishment of its theoretical framework. Due to the comprehensive intervention of the state will, the maritime law system has added administrative contents such as maritime justice and the state's management of coastal and harbor fisheries. Therefore, it can be considered that 1 maritime law in this period first completed the task of becoming law, because the existence of international legal rules is not castles in the air, but based on national legislation. Without the basis of domestic legislation, maritime law will always be customary law, which will not be binding on governments of various countries, thus affecting the further development of marine activities; 2. Maritime law in this period completed the task of legal system construction, because the particularity of maritime law determines that it must have the color of administrative management. Safeguarding national interests is one of the legislative purposes of maritime law, which is not only reflected in maritime law, but also in all other fields of international economic and trade exchanges.

The development of modern maritime law is more an extension of the maritime law marked by the formulation of conventions, that is, on the basis of the original legislation of various countries, coordinating different and conflicting provisions, unifying the basic understanding of maritime legal relations among countries, and meeting the requirements of the internationalization of maritime traffic for maritime law.

From the above analysis, it can be seen that maritime law should be the general name of legal norms regulating various administrative and civil and commercial relations related to ships and maritime transportation, and it is an independent legal department. Only by making such a definition can we meet the needs of the development of maritime law.

Secondly, the internationality of maritime law is becoming increasingly obvious. In a sense, the birth of maritime law has a strong "internationality", which is to adjust the relationship between countries (or regions) with the ocean as the medium. From interregional maritime rules to international treaties observed by countries all over the world, from regional maritime precedents to internationally accepted shipping practices, maritime law shows the trend of internationalization and unification. At the end of 1, the Swedish Law Committee held a special meeting to discuss the unification of maritime laws of various countries, and the United States also held an international shipping conference in Washington on 1889, pointing out that with the growth of commercial exchanges, navigation has become more and more international, and quite enthusiastic people hope to formulate laws and regulations on shipping and navigation through various methods. Based on this consensus, in the whole 20th century, the internationalization of maritime law developed by leaps and bounds, and more than 20 international conventions/kloc-0 were formulated successively (China joined 29 of them), forming a relatively complete international maritime legal system. 2. Unification of Maritime Conflict Law, 1983 In order to study the unification of private maritime international law, Comité Maritime International compiled the Questionnaire on Private International Maritime Law and sent it to maritime law associations of various countries, taking the answers provided by members as the basis for further research. Subsequently, relevant conventions were formulated on some issues that reached consensus: 1928 Convention on Private International Law and its annex Code of Private International Law, 1977 International Convention for the Unification of Certain Provisions on Civil Jurisdiction, Choice of Law, Recognition and Enforcement of Judgments in Ship Collision, and 1980 Convention on the Application of Law to Contractual Obligations. The formulation of these conventions provides another way to solve the internationalization of international maritime law and promotes the unification of maritime law. 3. The application of international shipping practices has increased flexibility and practicability for the unification of maritime law, and provided a new intermediary for the development of maritime law and the coordination of contradictions and conflicts between domestic laws. History shows that the appearance of convention will gradually lead the domestic laws of various countries to internationalization.

To sum up, the formulation of a country's maritime law must conform to the usual international standards, the relevant provisions of international treaties and the general laws of historical development. Such laws are advanced, can promote economic development, and are perfect.

Third, the economic basis of maritime law has changed. Whether it is code of hammurabi, Rhodes Law, the three major codes or modern international conventions, the economic basis determines the content of the law and the basic principles advocated. With the rapid development of science and technology and the modernization of navigation, successive technological revolutions will inevitably lead to major and substantial changes in the economic base and development trend in the middle of the 20th century, represented by The Hague-Visby Rules. The original shipping trade relationship is facing new challenges, which are mainly manifested in the increase in the number of maritime trade and the vigorous development of maritime transportation. This change makes the legal provisions of limiting the carrier's liability in order to protect and promote the development of the domestic shipping industry lack economic basis. Especially after the 1960s, the call for rational distribution of shipping risks and changing the traditional legal system to protect the interests of developed countries that monopolize the shipping industry is growing. This is not only the efforts of developing countries to seek a new international economic order, but also represents the development trend of maritime law from the perspective of economic and technological development. The international community has also responded positively to this. Although the formulation of the Convention on the Code of Conduct for Liner Conferences (1974) and Hamburg Rules (1978) failed to produce obvious results, with the economic development of developing countries and the increasingly fierce competition in the shipping industry, it is bound to become a reality to reduce the restrictions on the carrier's liability. In fact, there are many reasons why developed countries oppose the entry into force of conventions such as Hamburg Rules. One is to protect vested interests, and the other is legislative inertia. When the economy develops to a certain extent, the reduction of vested interests will prompt legislators in developed countries to re-examine the world environment and adjust their laws and policies. For example, countries all over the world have adopted a series of memoranda (Paris Memorandum signed by Europe 14 countries, Tokyo Memorandum signed by Asia-Pacific 193 countries and regions, etc.) on strengthening port state supervision over ship safety and safeguarding port state interests. ) Reduce maritime accidents caused by low ship standards, which is reflected from another aspect.

Fourth, the focus of the legal relationship of international sale of goods has changed. /kloc-before the 0/9th century, due to the rampant piracy and ship hijacking, the actual possession of goods was the focus of legal attention; /kloc-in the 0 ~ (th) century, the piracy and hijacking of ships in Europe gradually disappeared, and the legal elements of the sale of goods evolved to emphasize the transfer of ownership. The court decisions in France and Britain began to emphasize the importance of the certificate of ownership of maritime cargo. In the 20th century, due to the increasing value of maritime goods and the frequent occurrence of trade fraud, the focus of law shifted again, from the ownership or possession of goods to the emphasis on transactions and dangerous burdens of goods. At the same time, this change has also promoted the constant change of other related systems. Take the bill of lading as an example. As an important shipping and trade document, with the change of the focus of legal relationship, its basic function and function gradually developed from a document that proves the carrier's acceptance of the consigned goods to a receipt containing the transport contract, and then developed into a property right certificate for financial and commercial needs.

2 1 century, the mode of international cargo transportation has changed. The extensive use of containers and ro-ro ships, the development of the whole logistics chain of goods trade including sea transportation, and the appearance of electronic documents all put forward new requirements for sea transportation, that is, sea transportation should be closely integrated with other modes of transportation such as land transportation and air transportation (including unified legal provisions and smooth connection of transportation links). Therefore, the bill of lading, as a form of documents issued and withdrawn in the transportation link, plays an important role in trade, settlement, circulation and other links. No matter what its function, it should not only define its nature and recognize its rights from the perspective of maritime field. It can be seen from the development history of the bill of lading that the role of the bill of lading is expanding with the increase of its participation. Therefore, it is imperative to improve the bill of lading and related systems to meet the requirements of the development of the times.

Fifth, with the development of international economy, other trade fields have developed into buyer's markets. I think shipping, as a kind of service trade, will also appear this pattern because of the increasingly fierce competition. This is the inevitable result of economic development, so this article will not discuss it in detail.

Third, the enlightenment to China's revision of maritime law

The Maritime Code of People's Republic of China (PRC) has been implemented since July 1993, which has played an extremely important role in safeguarding the legitimate interests of the parties involved in maritime legal relations and ensuring the normal order and rapid development of the shipping market. However, it is undeniable that the formulation of laws always lags behind social practice, especially in today's economic and trade growth with geometric progression. Therefore, when China is about to join the World Trade Organization and face the competition from the world, it is very important to reasonably predict the future development trend according to the current situation of trade development and revise the Maritime Code. Through the induction and summary of the development history and trend of maritime law, I think the following links should be paid attention to in the revision of maritime law:

Firstly, the definition of maritime law should be re-examined based on the trend that the adjustment object and scope of maritime law norms are expanding. Article 1 of China's Maritime Law stipulates: "This Law is formulated in order to adjust the relationship between maritime transport and ships, safeguard the rights and interests of all parties concerned, and promote the development of maritime transport and economy and trade." This provision does not belong to the national maritime administrative regulations (although it is stipulated in Article 6 of Maritime Law), so when discussing the nature of maritime law, many scholars think that maritime law is a special civil law. This narrow interpretation can no longer meet the needs of the development of maritime law:

1. The development of maritime law tells us that it has its own independence. From the establishment of the "grey-footed court" to the maritime court in China, the uniqueness of maritime law has exceeded the tolerance of the basic rules and concepts of civil and commercial law in the judicial system; 2. The emergence of a large number of maritime management laws and regulations, emphasizing the protection of the marine environment, safeguarding the interests of port States and improving the requirements for ships and crew to ensure navigation safety, has occupied an important position in the development of maritime law, and it is unrealistic to adjust it with civil rules flaunting the principle of autonomy of will.

Therefore, it should be clearly stipulated that maritime law is the general name of legal norms regulating various administrative and civil and commercial relations related to ships and maritime transportation, and it is an independent legal department.

Secondly, the economic basis on which maritime law is based has changed, and the limitation of carrier's liability should be reconsidered. The fourth chapter of Maritime Law stipulates the carrier's liability system for incomplete fault in the carriage of goods by sea, and refers to the Hague-Visby Rules on the period of liability, the carrier's obligations, responsibilities and immunities, and the carrier's liability limitation. In my opinion, whether it is absorbing the provisions of The Hague-Visby Rules or referring to the principles of Hamburg Rules, it is analyzed from the perspective of one party in a legal relationship, which does not seem to meet the requirements of legislative neutrality. As a neutral legal provision, we should integrate social factors and economic conditions to make legal provisions that conform to the interests and development trend of the whole society. Therefore, on the issue of carrier's liability limitation, besides considering the particularity of maritime transportation, we should also do: 1 to protect a fair and reasonable trade order at the lowest socio-economic cost. We should not evade the obligation of the carrier or its agent to take care of and steer the ship just considering the so-called large investment and high risk in maritime transportation, otherwise it will be unreasonable to the innocent counterpart. At the same time, working reasonably and cautiously should be everyone's basic moral quality. If the law denies this for the sake of social and economic interests (as discussed above), then the social price paid for it is too high; 2. Progress in legislation. With the development of shipping industry and the intensification of competition after China's entry into WTO, laws that can properly safeguard the interests of shippers can not only promote the development of China's shipping industry, but also meet the needs of social development, which is of positive significance to opening up the shipping market in developing countries.

Therefore, I think the carrier's liability can be limited as follows:

1. The fault of the carrier's agent or employee in driving or managing the ship can be exempted, but it must be proved that the carrier or its agent or employee took reasonable measures to reduce the loss of the goods after the accident, otherwise the carrier shall be liable for the loss that should be reduced. (Article 5 1 of the Maritime Code)

2. Increase the carrier's compensation limit per unit for loss or damage of goods;

3. If the shipper fails to declare the nature or value of the goods before shipment and it is stated in the bill of lading, and the carrier can distinguish the value of the goods by the standard of normal rational person, it shall be deemed that the shipper has declared the nature and value of the goods before shipment. For example, the transportation of bare large-scale mechanical equipment that is not loaded into containers; (Article 56 of the Maritime Code 1)

4. The contract of carriage by sea stipulates that a specific part of the carriage contained in the contract shall be performed by a designated actual carrier other than the carrier. If the carrier is not responsible for the loss, damage or delay in delivery of the goods during the period when the goods are in the charge of the designated actual carrier, this clause is invalid and the carrier shall bear joint and several liabilities. (Paragraph 2 of Article 60 of Maritime Law)

Thirdly, based on the change of cargo transportation mode, we should reconsider the definition of the nature and function of bill of lading. Article 7 1 in the section of transport documents in Maritime Law stipulates: "Bill of lading refers to the document used to prove the contract of carriage of goods by sea and the evidence that the goods have been received or loaded by the carrier and kept by the carrier." It can be seen that China's laws adjust the bill of lading existing in the contractual relationship related to transportation. According to the above definition, we can draw the following conclusions about the nature of the bill of lading: 1, the bill of lading is the evidence of the contract of carriage of goods by sea; 2. The bill of lading is the receipt of the goods, which constitutes the preliminary evidence that the carrier has received the goods or the goods have been loaded on board according to the conditions stipulated in the bill of lading, and the final evidence that the carrier has received the goods between the carrier and the bona fide holder of the bill of lading; The bill of lading is the proof of the ownership of the goods. As far as the first two items are concerned, there is no dispute in the academic circles, but the last point, that is, the bill of lading is a document of property rights of goods, is not unified because there are only vague provisions in the law. The main difference lies in whether the bill of lading advocates real right or creditor's right. I think the argument is caused by different observation standards, and the bill of lading itself has the nature of both property right certificate and creditor's right certificate. Although some scholars have put forward such an answer, it is based on the premise of dividing the whole circulation process of bill of lading, so it is incorrect. The appearance of bill of lading is the product of virtual possession theory, which has the function of real right from the beginning, or it represents virtual things. It is based on this that the validity of creditor's rights will be reflected in the circulation of bill of lading. Creditor's right and property right are not two opposite rights, especially when understood in the context of creditor's right and creditor's right. In short, "under the same bill of lading, the two rights are equally important".

After establishing the nature of the bill of lading, we will find that the bill of lading defined in Article 7 1 is too narrow, which is a bit backward in the social background where the real right claims begin to appear. That is to say, the nature of the bill of lading's document of title (highlighting but not denying other properties of the bill of lading) highlighted in the process of maritime cargo transportation should gradually dilute people's attention. Emphasizing the validity of the bill of lading's creditor's rights certificate and combining the receipt and proof functions of the bill of lading should be an excellent opportunity for China's maritime law to create a precedent in the world, paving the way for the appearance of electronic documents: because based on the principle of public trust and publicity, the law has stricter provisions on the forms of expression of property rights and the documents related to property rights; On the contrary, in the field of creditor's rights and creditor's rights, it is more inclined to adopt a flexible legislative attitude to promote the realization of debts, emphasize the dynamic transaction process and ignore the static ownership of rights. The key reason why the legal status of electronic documents has not been resolved for a long time is that on the one hand, it is understood as a certificate of property rights, on the other hand, it cannot be regulated by the principle of pursuing the stability of property rights.

Therefore, I think China maritime law may wish to make the following amendments:

1. Regulate the legal system of bill of lading in sections.

2. It is stipulated that "the bill of lading refers to the document of rights to prove the contract of carriage of goods by sea and that the goods have been received or loaded by the carrier, and to commend the goods referred to under the bill of lading in the whole process of the sale of goods."

3. It is clearly stipulated that "the bill of lading can be any electronic or other appropriate form that can confirm its contents, and it does not need to be limited to the written form expressed by traditional paper media."

Fourthly, based on the development of logistics theory, we should focus on the legal status of multimodal transport operators and related institutional issues. In my opinion, the concept of big carrier may appear in the future development, that is, due to the extensive use of containers, the efficiency of cargo handling is improved, and it is possible to quickly switch from one means of transport to another without moving the goods in containers. Therefore, traditional maritime carriers may operate on land. Or container yard (CY) and container freight station (CFS) to receive the goods, and then use their own means of transport, such as container trucks, to directly transport them to the designated loading port and load them on their own ships; Similarly, at the unloading port, containers can also be transported to the designated destination by their own means of transport, realizing the transportation service between door, CY and CFS. This is of positive significance for an efficient logistics chain, which avoids the phenomenon that goods may be handed over and broken in multimodal transport, and the compensation for damage in transportation is delayed and uncertain. For such a large carrier, it is obviously not enough to use the existing legal provisions for multimodal transport. However, because multimodal transport is a new type of maritime transport, the research on it is not deep enough. Therefore, I think we can consider adding a provision in the maritime law: "If there are other provisions in laws and administrative regulations, those provisions shall prevail."

Finally, based on the increasingly complex maritime legal relationship, we should think deeply about the relationship between maritime law and other legal departments. Obviously, the relationship between maritime law and contract law is the focus of debate at present. There are two main reasons for correction: 1. The adjustment ranges of the two methods overlap, and the provisions of the two methods on related issues are inconsistent. For example, the carrier's delay in delivery of the goods, the modification and rescission of the contract, the principle of the carrier's liability, the principle of compensation for the loss or damage of the goods, the carrier's lien on the goods and so on. 2. Whether maritime law belongs to the special law of civil law is still controversial, and the effectiveness of contract law and maritime law is hard to determine.

In my opinion, maritime law should belong to an independent legal department (discussed earlier), so it should be parallel to contract law. It cannot be considered as a law lower than contract law just because there are provisions on transport contract in maritime law, because maritime law mainly adjusts the relationship of maritime transport, and transport contract is only an inseparable part of it. There is no difference in effectiveness between the two, which is one of them; Secondly, contract law is a powerful supplement to maritime law in the field of transportation, and there is no conflict between them in legal provisions. Based on the above two points, it is suggested to make the following amendments to the maritime law:

1. stipulates that "the carriage of goods by sea and the legal relationship related to ships belong to the scope of adjustment of maritime law."

2. It is stipulated that "if the contractual relationship of carriage of goods by sea is not adjusted by the maritime law, relevant international treaties and practices shall apply; If the relevant international treaties and practices are still not stipulated, the relevant industry practices in China shall apply; In the absence of corresponding provisions in the above measures, it can be resolved fairly and reasonably with reference to the relevant provisions of China's Contract Law. "